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ENTERASYS NETWORKS, INC. FIRMWARE LICENSE AGREEMENT

BEFORE ENABLING ANY LICENSED FIRMWARE FEATURE, CAREFULLY READ THIS LICENSE AGREEMENT.

This document is an agreement (“Agreement”) between the end user (“You”) and Enterasys Networks, Inc., on behalf of itself and its Affiliates (as hereinafter defined) (“Enterasys”) that sets forth Your rights and obligations with respect to the Enterasys software program/firmware (including any accompanying documentation, hardware or media) (“Program”) and prevails over any additional, conflicting or inconsistent terms and conditions appearing on any purchase order or other document submitted by You. “Affiliate” means any person, partnership, corporation,

limited liability company, other form of enterprise that directly or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with the party specified. This Agreement constitutes the entire understanding between the parties, with respect to the subject matter of this Agreement. The Program may be contained in firmware, chips or other media.

BY ENABLING OR OTHERWISE USING THE PROGRAM/FEATURE, YOU REPRESENT THAT YOU ARE AUTHORIZED TO ACCEPT THESE TERMS ON BEHALF OF THE END USER (IF THE END USER IS AN ENTITY ON WHOSE BEHALF YOU ARE AUTHORIZED TO ACT, “YOU” AND “YOUR” SHALL BE DEEMED TO REFER TO SUCH ENTITY) AND THAT YOU AGREE THAT YOU ARE BOUND BY THE TERMS OF THIS AGREEMENT, WHICH INCLUDES, AMONG OTHER PROVISIONS, THE LICENSE, THE DISCLAIMER OF WARRANTY AND THE LIMITATION OF LIABILITY. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT OR ARE NOT AUTHORIZED TO ENTER INTO THIS AGREEMENT, ENTERASYS IS UNWILLING TO LICENSE THE PROGRAM/FEATURE TO YOU AND YOU AGREE THAT YOU ARE NOT AUTHORIZED TO ENABLE OR USE SAID LICENSED FIRMWARE FEATURE.

IF YOU HAVE ANY QUESTIONS ABOUT THIS AGREEMENT, CONTACT ENTERASYS NETWORKS, LEGAL DEPARTMENT AT (978) 684-1000.

You and Enterasys agree as follows:

  1. LICENSE. You have the non-exclusive and non-transferable right to enable the specified firmware feature on the number of switches equal to the number of licenses that you have purchased subject to the terms and conditions of this Agreement.

  2. RESTRICTIONS. Except as otherwise authorized in writing by Enterasys, You may not, nor may You permit any third party to:

    1. Reverse engineer, decompile, disassemble or modify the Program, in whole or in part, including for reasons of error correction or interoperability, except to the extent expressly permitted by applicable law and to the extent the parties shall not be permitted by that applicable law, such rights are expressly excluded. Information necessary to achieve interoperability or correct errors is available from Enterasys upon request and upon payment of Enterasys’ applicable fee.
    2. Incorporate the Program in whole or in part, in any other product or create derivative works based on the Program, in whole or in part.
    3. Publish, disclose, copy reproduce or transmit the Program, in whole or in part.
    4. Assign, sell, license, sublicense, rent, lease, encumber by way of security interest, pledge or otherwise transfer the Program, in whole or in part.
    5. Remove any copyright, trademark, proprietary rights, disclaimer or warning notice included on or embedded in any part of the Program

    3.  

  3. APPLICABLE LAW. This Agreement shall be interpreted and governed under the laws and in the state and federal courts of the Commonwealth of Massachusetts without regard to its conflicts of laws provisions. You accept the personal jurisdiction and venue of the Commonwealth of Massachusetts courts. None of the 1980 United Nations Convention on the Limitation Period in the International Sale of Goods, and the Uniform Computer Information Transactions Act shall apply to this Agreement.

  4. EXPORT RESTRICTIONS. You understand that Enterasys and its Affiliates are subject to regulation by agencies of the U.S. Government, including the U.S. Department of Commerce, which prohibit export or diversion of certain technical products to certain countries, unless a license to export the product is obtained from the U.S. Government or an exception from obtaining such license may be relied upon by the exporting party. If the Program is exported from the United States pursuant to the License Exception CIV under the U.S. Export Administration Regulations, You agree that You are a civil end user of the Program and agree that You will use the Program for civil end uses only and not for military purposes. If the Program is exported from the United States pursuant to the License Exception TSR under the U.S. Export Administration Regulations, in addition to the restriction on transfer set forth in Section 1 or 2 of this Agreement, You agree not to (i) reexport or release the Program, the source code for the Program or technology to a national of a country in Country Groups D:1 or E:2 (Albania, Armenia, Azerbaijan, Belarus, Cambodia, Cuba, Georgia, Iraq, Kazakhstan, Laos, Libya, Macau, Moldova, Mongolia, North Korea, the People’s Republic of China, Russia, Tajikistan, Turkmenistan, Ukraine, Uzbekistan, Vietnam, or such other countries as may be designated by the United States Government), (ii) export to Country Groups D:1 or E:2 (as defined herein) the direct product of the Program or the technology, if such foreign produced direct product is subject to national security controls as identified on the U.S. Commerce Control List, or (iii) if the direct product of the technology is a complete plant or any major component of a plant, export to Country Groups D:1 or E:2 the direct product of the plant or a major component thereof, if such foreign produced direct product is subject to national security controls as identified on the U.S. Commerce Control List or is subject to State Department controls under the U.S. Munitions List.

  5. UNITED STATES GOVERNMENT RESTRICTED RIGHTS. The Program (i) was developed solely at private expense; (ii) contains “restricted computer software” submitted with restricted rights in accordance with section 52.227-19 (a) through (d) of the Commercial Computer Software-Restricted Rights Clause and its successors, and (iii) in all respects is proprietary data belonging to Enterasys and/or its suppliers. For Department of Defense units, the Program is considered commercial computer software in accordance with DFARS section 227.7202-3 and its successors, and use, duplication, or disclosure by the U.S. Government is subject to restrictions set forth herein.

  6. DISCLAIMER OF WARRANTY. ENABLING A FIRMWARE FEATURE ON A SWITCH DOES NOT MODIFY THE EXISTING SWITCH FIRMWARE WARRANTY IN ANY MANNER. EXCEPT FOR THOSE SWITCH FIRMWARE WARRANTIES EXPRESSLY PROVIDED TO YOU IN WRITING BY ENTERASYS, ENTERASYS DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT WITH RESPECT TO THE PROGRAM. IF IMPLIED WARRANTIES MAY NOT BE DISCLAIMED BY APPLICABLE LAW, THEN ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION TO THIRTY (30) DAYS AFTER DELIVERY OF THE PROGRAM/FEATURE TO YOU.

  7. LIMITATION OF LIABILITY. IN NO EVENT SHALL ENTERASYS OR ITS SUPPLIERS BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR RELIANCE DAMAGES, OR OTHER LOSS) ARISING OUT OF THE USE OR INABILITY TO USE THE PROGRAM, EVEN IF ENTERASYS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS FOREGOING LIMITATION SHALL APPLY REGARDLESS OF THE CAUSE OF ACTION UNDER WHICH DAMAGES ARE SOUGHT. THE CUMULATIVE LIABILITY OF ENTERASYS TO YOU FOR ALL CLAIMS RELATING TO THE PROGRAM, IN CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID TO ENTERASYS BY YOU FOR THE RIGHTS GRANTED HEREIN.

  8. AUDIT RIGHTS. You hereby acknowledge that the intellectual property rights associated with the Program are of critical value to Enterasys, and, accordingly, You hereby agree to maintain complete books, records and accounts showing (i) feature license documents provided to You by Enterasys, and (ii) the use, copying and deployment of the Program. You also grant to Enterasys and its authorized representatives, upon reasonable notice, the right to audit and examine during Your normal business hours, Your books, records, accounts and hardware devices upon which the Program may be deployed to verify compliance with this Agreement, including the verification of the license fees due and paid Enterasys and the use, copying and deployment of the Program. Enterasys’ right of examination shall be exercised reasonably, in good faith and in a manner calculated to not unreasonably interfere with Your business. In the event such audit discovers non-compliance with this Agreement, including copies of the Program made, used or deployed in breach of this Agreement, You shall promptly pay to Enterasys the appropriate license fees. Enterasys reserves the right, to be exercised in its sole discretion and without prior notice, to terminate this license, effective immediately, for failure to comply with this Agreement. Upon any such termination, You shall immediately cease all use of the Program and shall return to Enterasys the Program and all copies of the Program.

  9. OWNERSHIP. This is a license agreement and not an agreement for sale. You acknowledge and agree that the Program constitutes trade secrets and/or copyrighted material of Enterasys and/or its suppliers. You agree to implement reasonable security measures to protect such trade secrets and copyrighted material. All right, title and interest in and to the Program shall remain with Enterasys and/or its suppliers. All rights not specifically granted to You shall be reserved to Enterasys.

  10. ENFORCEMENT. You acknowledge and agree that any breach of Sections 2, 4, or 9 of this Agreement by You may cause Enterasys irreparable damage for which recovery of money damages would be inadequate, and that Enterasys may be entitled to seek timely injunctive relief to protect Enterasys’ rights under this Agreement in addition to any and all remedies available at law.

  11. ASSIGNMENT. You may not assign, transfer or sublicense this Agreement or any of Your rights or obligations under this Agreement, except that You may assign this Agreement to any person or entity which acquires substantially all of Your stock assets. Enterasys may assign this Agreement in its sole discretion. This Agreement shall be binding upon and inure to the benefit of the parties, their legal representatives, permitted transferees, successors and assigns as permitted by this Agreement. Any attempted assignment, transfer or sublicense in violation of the terms of this Agreement shall be void and a breach of this Agreement.

  12. WAIVER. A waiver by Enterasys of a breach of any of the terms and conditions of this Agreement must be in writing and will not be construed as a waiver of any subsequent breach of such term or condition. Enterasys’ failure to enforce a term upon Your breach of such term shall not be construed as a waiver of Your breach or prevent enforcement on any other occasion.

  13. SEVERABILITY. In the event any provision of this Agreement is found to be invalid, illegal or unenforceable, the validity, legality and enforceability of any of the remaining provisions shall not in any way be affected or impaired thereby, and that provision shall be reformed, construed and enforced to the maximum extent permissible. Any such invalidity, illegality, or unenforceability in any jurisdiction shall not invalidate or render illegal or unenforceable such provision in any other jurisdiction.

  14. TERMINATION. Enterasys may terminate this Agreement immediately upon Your breach of any of the terms and conditions of this Agreement. Upon any such termination, You shall immediately cease all use of the Program.